State Consumer Disputes Redressal Commission
Lal Babu Prasad vs The New India Insur. Co. Ltd. & Anr. on 28 August, 2015
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/14/651
Instituted on : 27.09.2014
Lal Babu Prasad, S/o Shri Ramchandra Prasad, Age 46 years,
R/o : 1A, Songanga Colony, Seepat Road, Sarkanda,
Bilaspur, Tehsil and District Bilaspur (C.G.) ... Appellant
Vs.
1. The New India Assurance Company Limited,
Divisional Office - In Front of Rajiv Plaza,
Rama Trade Centre, Near Bus Stand,
Bilaspur (C.G.)
2. Indusind Bank,
Shop No.5.12, Second Floor, Near P.C. Jewellers,
C.G. Plaza, Near Agrasen Chow,
Bilaspur (C.G.) .... Respondents
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :-
Shri B. Mazumdar, for appellant.
Shri Manoj Agrawal, for respondent No.1.
Smt. Nupur Pal, for respondent No.2.
ORDER
Dated : 28/08/2015 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against the order dated 05.09.2014, passed by the District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth "District Forum" for short), in Complaint Case // 2 // No.CC/96/2013. By the impugned order, learned District Forum, has dismissed the complaint of the appellant (complainant).
2. Briefly stated the facts of the case are that the appellant (complainant) purchased a J.C.B. Excavator Machine bearing registration No.C.G.10-D/3303 with the financial help of the respondent No.2 (O.P.No.2) and the said J.C.B. Excavator Machine was insured with the respondent No.1 (O.P. No.1) for the period from 07.07.2008 to 06.07.2009 under Insurance Policy No.450300/31/08/01/0002128. The J.C.B. Excavator Machine was engaged at Village Banghora, Police Station Manda, District Singrauli (M.P.) with the Simplex Company. On 07.01.2009, some unknown persons caught fire the J.C.B. Excavator Machine due to which the J.C.B. Excavator Machine was burnt. The matter was reported to the concerned Police Station and the matter was also reported to the respondent No.1 (O.P.No.1) . The Engineer of the J.C.B. Company inspected the J.C.B. Excavator Machine and he found that J.C.B. Excavator Machine was completely damaged. The respondent No.2 (O.P.No.2) took possession of the J.C.B. Excavator Machine. The respondent No.1 (O.P.No.1) appointed Surveyor, who inspected the J.C.B. Excavator Machine and gave his report. The Insured Declared Value (I.D.V.) of the J.C.B. Excavator Machine is Rs.18,76,250/- and the same was badly damaged, therefore, the appellant (complainant) is // 3 // entitled get the Insured Declared Value Rs.18,76,250/- from the respondents (OPs) along with interest, Rs.5,000/- towards compensation for mental agony and cost of litigation. Therefore, the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting above reliefs.
3. The respondent No.2 (O.P.No.2) filed its written statement and denied the allegations leveled against it by the appellant (complainant) in the complaint. The respondent No.2 (O.P. No.2) pleaded that appellant (complainant) did not pay loan amount and he also failed to deposit the installments regularly. The appellant (complainant) is not entitled to get any compensation from the respondent No.2 (O.P.No.2).
4. Before the District Forum, inspite of service of notice, none appeared for the respondent No.1 (O.P.No.1) and the written statement was not filed, therefore, the respondent No.1 (O.P. No.1) was proceeded ex-parte in the complaint.
5. Learned District Forum, after having considered the material placed before it by the parties, has dismissed the complaint.
6. Shri B. Mazumdar, learned counsel appearing for the appellant (complainant) has argued that the appellant (complainant) purchased J.C.B. Excavator Machine for earning his livelihood by self // 4 // employment, he obtained loan from the respondent No.2 (O.P.No.2) and obtained insurance Policy No. No.450300/31/08/01/0002128 for the period from 07.07.2008 to 06.07.2009 from the respondent No.1 (O.P.No.1), therefore, the appellant (complainant) is "consumer" of the respondents (OPs). He further argued that on 07.01.2009, some mis- creants burnt the J.C.B. Excavator Machine when it was engaged with Simplex Company at Village Banghora, Police Station Manda, District Singrauli (M.P.). The Insured Declared Value (IDV) of the J.C.B. Excavator Machine is Rs.18,76,250/-. The matter was reported to the concerned Police Station, Manda, District Singrauli (M.P.) and also to J.C.B. Company and the Engineer of the J.C.B. Company inspected the vehicle and gave his report. According to the Engineer of the J.C.B. Company, the J.C.B. Excavator was completely damaged. The appellant (complainant) is entitled to get Rs.18,76,250/-, which is Insured Declared Value of the J.C.B. Excavator Machine. The impugned order passed by the District Forum, is erroneous and is liable to be set aside. He placed reliance on order of Hon'ble National Commission in the case of Madan Kumar Singh (D) THR. LR. vs. Distt. Magistrate, Sultanpur & Ors. IV (2009) CPJ 3 (SC).
7. Shri Manoj Agrawal, learned counsel appearing for the respondent No.1 (O.P.No.1) has argued that the appellant (complainant) is not consumer. The J.C.B. Excavator Machine of the // 5 // appellant (complainant) was engaged with Simplex Company at Village Banghora, Police Station Manda, District Singrauli (M.P.). The appellant (complainant) was doing business in the name and style of Prasad Travel, therefore, the J.C.B. Excavator Machine was being used for commercial purpose, hence the appellant (complainant) is not consumer. He further argued that before the District Forum, the respondent No.1 (O.P.No.1) was proceeded ex-parte and it could not file written statement along with affidavit and documents. He further argued the matter be remitted back to the District Forum and respondent No.1 (O.P.No.1) be granted opportunity to file its written statement along with affidavits and documents.
8. Smt. Nupur Pal, learned counsel appearing for the respondent No.2 (O.P.No.2) has supported the impugned order passed by the learned District Forum.
9. We have heard counsel for the parties and have also perused the record of the District Forum.
10. Firstly, we shall consider whether the appellant (complainant) is "consumer" of the respondents (OPs).
11. Section 2(1)(d) of the Consumer Protection Act, 1986 runs thus :-
"(d) "consumer" means any person who,-
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(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];"
Explanation:- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment;"
12. Section 2(1)(o) of the Consumer Protection Act, 1986 runs thus :-
"(o)" "service" means service of any description which is made available to potential [users and includes, but not limited to the, provision of] facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction,] entertainment, amusement or the purveying of news or other information, but does // 7 // not include the rendering of any service free of charge or under a contract of personal service;"
13. In The Divisional Manager, L.I.C. vs. Shri Bhavanam Srinivas Reddy, 1991 (2) CPR 144 (NC), Hon'ble National Commission, observed thus :-
"3. The first point of objection raised by the Insurance Company before the State Commission and reiterated before us namely is that no dispute arising out of a contract of insurance can be made subject matter of adjudication under the Consumer Protection Act. This contention cannot be sustained in view of decision of this Commission dated July 28, 1989 in Shri Umedilal Aggarwal v. United India Assurance Company Ltd., F.A. Nos.3 and 4 of 1989 (Reported in I (1991) CPJ-3, 1991 (1) CPR 217 (NC), wherein we have held as follows :-
"We find no merit in the contention put forward by the insurance company that a complaint relating to the failure on the part of the insurer to settle the claim of the insured within a reasonable time and the prayer for the grant of compensation in respect of such delay will not fall within the jurisdiction of the Redressal Forums constituted under the Consumer Protection Act. The provision of facilities in connection with insurance has been specifically included within the scope of the express 'service' by the definition of the said word contained in Section 2(i)(o) of the Act. Our attention was invited by Mr. Malhotra, learned counsel for the Insurance Company to the decision of the Queen's Bench in National Transit Insurance Company Ltd. vs. Customs and Central Excise Commissioner, (1975) (1) all England Reports Page 303) The observations contained in the said judgment relating to the scope of the expression // 8 // 'insurance' occurring the schedule of the enactment referred to therein are of no assistance at all to us in this case because the context in which the expression is used in the English enactment considered in the case is entirely different. Having regard to the philosophy of the Consumer Protection Act and its avowed object of providing cheap and speedy redressal to consumers affected by the failure on the part of persons providing "service" for a consideration, we do not find it possible to hold that the settlement of insurance claims will not be covered by the expression "insurance" occurring in Section 2(1)(d). Whenever there is a default or negligence in regard to such settlement of an insurance claim that will constitute a 'deficiency' in the service on the part of the Insurance company and it will be perfectly open to the concerned aggrieved consumer to approach the Redressal Forums under the Act seeking appropriate relief. We, accordingly over the objection raised by the Insurance Company regarding the jurisdiction of the State Commission to adjudicate upon the complaint.
14. In The Divisional Manager, L.I.C. vs. Uma Devi, 1991 (1) CPR 662 (NC), Hon'ble National Commission, observed thus :-
"8. The very fact that the Insurance Act provides for a machinery for remedy for grievances arising out of repudiation of a claim under section 45 leads to show that the Corporation has to satisfy a Court that the repudiation was justified. Accordingly, it is for the consumer to choose a forum convenient to him to seek remedy for the loss suffered because of deficiency in service. As the provisions of this Act are in addition to and not in derogation of any other law for the time being in force, the State Commission has the jurisdiction to entertain the complaint and to investigate whether the repudiation was justified // 9 // or not and to grant such relief as deems fit if it is satisfied that there was deficiency in service. We therefore, cannot uphold this contention in view of the decision of this Commission in Revision Petition No.12 of 1990 (New India Assurance Co. Ltd. v. Vipro Electronics Pvt. Ltd., 1991 (1) C.P.R. (NC) 531, where the identical point has been elaborately discussed".
15. In The New India Assurance Co. Ltd. vs. M/s Vipro Electronics Pvt. Ltd., 1991 (1) C.P.R. (N.C.) 531, the Hon'ble National Commission, observed thus :
"We are not impressed with the contention raised by Shri S.K. Paul, learned counsel appearing on behalf of the Petitioner that merely because of Insurer had totally repudiated his liability in respect of the claim, no proceedings could be validly initiated under the Consumer Protection Act by the insurer. This contention squarely falls within the ruling given by this Commission in Ummedilal Agrawal v. United India Assurance Co. Ltd. (O.P.No.3 & 4 of 1989, decided on 28.7.1989". In that decision this Commission has observed that it is not possible to hold that settlement of a disputed insurance claim will not be covered by the expression "service" occurring in Section 2(d) of the Act. It was laid down that whenever there is default or negligence in regard to service that will constitute "deficiency in service" on the part of the insurer and it is perfectly open to the aggrieved party for seeking appropriate relief under the Act.
In the result, the Revision Petition has no merits and it is accordingly dismissed".
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16. In M/s. Harsolia Motors vs. M/s. National Insurance Co. Ltd. & Ors. 2005 (1) CPR 1 (NC) Hon'ble National Commission, has observed thus :-
"13. In Halabury's Laws of England Vol. 25, 4th Edition, the origin and common principles of insurance is discussed and in paragraph 3 it has been discussed and in paragraph 3 it has been mentioned that it is based on principle of indemnity. Thereafter, relevant discussion is to the effect that most of contract of insurance belong to general category of contracts of indemnity. In the sense that insurers' liability is limited to the actual loss which is , in fact, proved. The contract is one of indemnity and, therefore, insured can recover the actual amount of loss and no more.
14. In this view of the matter, taking of the insurance policy is for protection of the interest of the assured in the articles or goods and not for making any profit or trading for carrying on commercial purpose.
16. We would refer to few relevant judgments :
In Regional Provident Fund Commissioner vs. Shiv Kumar Joshi, (2000) 1 SCC 98, the Court elaborately considered the provisions of Sections 2(1)(d) and 2(1)(o) as well as earlier decisions and held that :-
"The combined reading of the definitions of 'consumer' and 'service' under the Act and looking at the aims and object for which the Act was enacted, it is imperative that the words "consumer" and "service" as defined under the Act should be construed to comprehend consumer and services of commercial and trade-oriented nature only. Thus any person who is found to have hired services for consideration shall 'be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be // 11 // for any connected commercial activity and may also relate to the services as indicated in Section 2(1)(o) of the Act."
The aforesaid ratio makes it abundantly clear that the services may be for any connected commercial activity, yet it would be within the purview of the Act."
17. The insurance Policy No.450300/31/08/01/0002128 for the period from 07.07.2008 to 06.07.2009 was purchased by the appellant (complainant) from the respondent No.1 (O.P. No.1) for protection of the interest of his property, therefore, the appellant (complainant) is "consumer" and dispute between the parties comes within purview of "consumer dispute".
18. In the instant case, the appellant (complainant) pleaded that respondent No.1 (O.P.No.1) appointed Surveyor for assessment of loss to the vehicle in question and Surveyor inspected the vehicle and gave his report, but the report of the Surveyor has not been filed by the appellant (complainant) as well as respondent No.1 (O.P.No.1). The respondent No.1 (O.P.No.1) was proceeded ex-parte, therefore, the respondent No.1 (O.P.No.1) could not file written statement before the District Forum. Even Report of the Surveyor, has not been filed by the respondent No.1 (O.P. No.1) before the District Forum. The Report of the Surveyor, is material document for proper adjudication of the case. The respondent No.1 (O.P.No.1) could not file written statement, affidavits and documents before the District Forum and for proper adjudication of the case, it is essential to // 12 // permit the respondent No.1 (O.P.No.1) to file written version, affidavits and documents before the District Forum and thereafter the District Forum will decide the matter afresh.
19. In view of aforesaid discussion, we deem it appropriate to set aside the impugned order dated 05.09.2014, passed by the District Forum by allowing the instant appeal.
20. Therefore, the appeal of the appellant (complainant) is allowed and the impugned order dated 05.09.2014, is set aside. The case is remitted back to the District Forum with a direction to consider the matter on merits. The respondent No.1 (O.P.No.1) is directed to file its written statement along with affidavits and documents before the District Forum. The respondent No.1 (O.P.No.1) is further directed to file Report of the Surveyor before the District Forum. Learned District Forum may also provide an opportunity to the appellant (complainant) to file documents in rebuttal of the documents filed by the respondent No.1 (O.P.No.1) and thereafter the District Forum will decide the matter afresh on merits. Parties are directed to appear before the District Forum on 17.09.2015. Office of this Commission is directed to send the record to the District Forum Record of the District Forum immediately.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (NarendraGupta) President Member Member Member /08/2015 /08/2015 /08/2015 /08/2015